Unassociated Document


    Exhibit
10.1

     

    
      FIFTH
AMENDMENT TO REGISTRATION RIGHTS AGREEMENT

      


      THIS FIFTH AMENDMENT (the “Amendment”)
is made as of December 21, 2009, to the Registration Rights Agreement (the
“Agreement”) between Neoprobe Corporation (the “Company”) and Platinum-Montaur
Life Sciences, LLC (the “Purchaser”), dated December 26, 2007, as amended by the
Amendment to Registration Rights Agreement, dated February 7, 2008, Second
Amendment to Registration Rights Agreement dated April 16, 2008, Third Amendment
to Registration Rights Agreement, dated July 10, 2008, and Fourth Amendment to
Registration Rights Agreement, dated December 5, 2008.  Capitalized
terms not otherwise defined herein shall have the meanings defined in the
Agreement.

      


      Recital

      


      The Company and the Purchaser desire to
amend certain provisions of the Agreement to modify the description of the
Registrable Securities as to which the Company is required to file a
registration statement.

      


      Statement of
Agreement

      


      In consideration of the foregoing, and
of their mutual promises contained herein, the parties agree as
follows:

      


      1.    Resale
Registration.  The first sentence of Section 2(a) of the
Agreement which originally stated that “On or prior to the Filing Date the
Company shall prepare and file with the Commission a “resale” Registration
Statement providing for the resale of all Registrable Securities for an offering
to be made on a continuous basis pursuant to Rule 415,” shall be deleted in its
entirety and replaced with the following: “On or prior to December 31, 2009, the
Company shall prepare and file with the Commission: (a) a post-effective
amendment to the registration statement on Form S-1 (file no. 333-150650) filed
by the Company on May 5, 2008, providing for the de-registration of the shares
of Common Stock registered thereby; and (b) a new “resale” registration
statement which shall provide for the resale of (i) up to 3,600,000 shares of
Common Stock issuable upon the conversion of a portion of the Company’s Amended
and Restated 10% Series A Convertible Senior Secured Promissory Note in the
principal amount of $7,000,000, due December 26, 2011 (the “Amended Series A
Note”), (ii) 6,000,000 shares of Common Stock issued upon exercise of the
Company’s Amended and Restated Series Y Warrant to purchase 6,000,000 shares of
Common Stock at an exercise price of $0.575 per share issued to the Purchaser
(the “Amended Series Y Warrant”), (iii) 3,500,000 shares of Common Stock
issuable as interest or dividends on the Amended Series A Note, the Company’s
Amended and Restated 10% Series B Convertible Senior Secured Promissory Note in
the principal amount of $3,000,000, due December 26, 2011 (the “Amended Series B
Note”), and 3,000 shares of the Company’s 8% Series A Cumulative Convertible
Preferred Stock issued to the Purchaser (the “Preferred Stock”), and (iv)
2,400,000 shares of Common Stock issuable upon exercise of the Company’s Series
AA Warrant to purchase 2,400,000 shares of Common Stock at an exercise price of
$0.97 per share issued to the Purchaser (the “Series AA Warrant”), provided that
the total number of shares of Common Stock registered does not exceed
15,500,000, for an offering to be made on a continuous basis pursuant to Rule
415. Additionally, within thirty-five (35) days of receipt from the Purchaser of
written request therefor, the Company shall prepare and file with the Commission
an additional “resale” registration statement providing for the resale of (i)
the remaining shares of Common Stock issuable upon the conversion of the Amended
Series A Note, (ii) the shares of Common Stock issuable upon the exercise of the
Amended Series W Warrant to purchase 6,000,000 shares of Common Stock at an
exercise price of $0.32 per share issued to the Purchaser, (iii) the shares of
Common Stock issuable upon the conversion of the Amended Series B Note, (iv) the
shares of Common Stock issuable upon the exercise of the Amended and Restated
Series X Warrant to purchase 8,333,333 shares of Common Stock at an exercise
price of $0.46 per share issued to the Purchaser, and (v) the shares of Common
Stock issuable upon conversion of the Preferred Stock, provided, however, that
the Company is not required to file such additional registration statement, or
may exclude shares from such additional registration statement, if it believes
in good faith, based upon advice from the Commission, that application of Rule
415 would not permit registration of all or the excluded portion of such shares
of Common Stock.

       

      
        
           

        

        
           

          
            

          

        

        
           

        

      

      2.    Sole
Holder.  Purchaser represents that it has not assigned or
otherwise transferred any of the Registrable Securities entitled to registration
rights hereunder, and that as of the date of this Amendment, it is the sole
Holder of the Registrable Securities.

      


      3.    No Other
Modification.  Except as expressly modified or amended hereby,
the terms and conditions of the Agreement shall remain unchanged and in full
force and effect, and each of the parties hereby ratifies and confirms the same.
In the event of any conflict between the terms of the Agreement or any previous
amendment to the Agreement and this Amendment, the terms of this Amendment shall
govern.

      


      4.    Counterparts.  This
Amendment may be executed in counterparts, each of which shall be deemed to be
an original and all such counterparts together shall constitute one and the same
instrument.

      


      IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed by their respective authorized persons as of the date first indicated
above.

       

      
        	 	      
                NEOPROBE
      CORPORATION

                


                


                By: /s/ Brent L.
      Larson

                  Name: Brent L.
      Larson

                  Title:
      Vice-President, Finance, Chief Financial Officer

                      Treasurer and
      Secretary

                      

                


                PLATINUM-MONTAUR
      LIFE SCIENCES, LLC

                 

                By: /s/ Michael
      Goldberg

                  Name: Michael
      Goldberg

                  Title: Portfolio
      Manager

              


      

       

       

      
        
           

        

        
          2